The Eighth Circuit Court of Appeals upheld the twenty month sentence of Michael Lee Knight for failure to pay child support. The Court found that he failed to pay $35,833.13 in child support and that he owed $78,565.85 (including interest?) in restitution.

Knight claimed that the trial court did not take into sufficient consideration “his poverty, history of sexual and physical abuse, struggles with drug addiction and bipolar disorder, incarceration while he was to pay child support, and efforts to care for his current wife, mother, children and stepchildren.”

Knight plead guilty to the offense of not paying child support. The appellate court pointed out that its responsibility was limited to determining whether the District Court abused its discretion in sentencing Knight to twenty months. The Sentencing Guidelines indicated a sentence of 30-37 months. But since the maximum sentence for the offense is two years the District Court sentenced Knight to twenty months. The Eighth Circuit pointed out that the District Court need not address every possible sentencing issue on the record. Sentences within the Guidelines are presumptively valid and according to the court it is highly unlikely that that any sentence below the Guidelines is an abuse of discretion.

What I don’t get is what possible benefit is there to society of placing a person in prison for failing to pay child support. Certainly during the period of the sentence no child support is going to be paid. Knight is already on Social Security Disability so his ability to pay child support must be questioned. Even if he can work the prison commitment will make it more difficult when he gets out for him to get a job and pay child support. We have long ago given up debtor’s prisons. We cannot put him back in prison for failing to pay the restitution unless he has the ability to pay the restitution and fails to do so.

Marshall Kanner was a principal owner of Pharmacon International Corporation. Pharmacon sold prescription medication over the internet. Patients sent descriptions of their medical problems over the internet. Doctors reviewed the descriptions and prescribed medication. Pharmacon filled the prescriptions.

Among the prescriptions filled were prescriptions for Schedule III and Schedule IV controlled substances for which a prescription is necessary. The government charged Kanner and others with conspiring to distribute controlled substances in violation of 21 U. S. C. 841(a)(1) much like it charges people with conspiring to sell illegal drugs. It’s theory was that since the doctors never saw the patients the doctors were not practicing medicine and therefore the distribution was in violation of the Controlled Substance Act. (CSA)

The guiding law on this matter is the Supreme Court case, United States v. Moore. In Moore the Supreme Court held that doctors could be prosecuted for violating the CSA if “their activities fall outside the usual course of professional practice.” Kanner argued that Moore had been supplanted by Gonzales v. Oregon in which the Supreme Court considered a 2001 Interpretative Rule by the Attorney General prohibiting doctors from prescribing medication in compliance with Oregon’s assisted suicide law. In Gonzales the court said the CSA bars the prescription of drugs for illicit purposes and since the Oregon doctors were prescribing medication in compliance with Oregon law they were not violating the CSA. While the CSA bars prescriptions issued for illicit purposes it still only protects doctors who are prescribing medication in the “usual course of professional practice.” Since prescribing medication without ever seeing or examining the patient and without the ability to verify patient’s complaints is not within the “usual course of professional practice according to the Eighth Circuit Court of Appeals, Pharmacon violated the Controlled Substance Act and it upheld Kanner’s conviction.

While I am not sure I would want to be prescribed medication by a doctor who never examined me and had no way of verifying my complaints, it does seem overly harsh to prosecute pharmacies and doctors who prescribe legitimate medication over the internet in the same way the government prosecutes drug dealers.

Employees from the Stone County (Missouri) jail transported Penny Whitson and four men in the same van to the state Department of Corrections. The van consisted of three section. In the first section were two employees of the jail, one of whom drove the van. In the first caged section behind the driver were three men. In the back caged section was one man, Richard Leach, and Whitson.

The van was dark and noisy. The officers were playing loud music. Whitson alleged that Leach raped her. She did not immediately complain but she complained when the van stopped at a rest stop and when they got to the prison. A rape test at the prison showed mobile sperm.

She sued the deputies in the van for failure to protect her. She also alleged that the jail and supervising officers failed to properly train and supervise the officers.

The District Court granted the defendants motion for summary judgment but the Eighth Circuit Court of Appeals reversed the trial court decision finding that triable facts exist. On a motion for summary judgment the question is whether as a matter of law one party wins and that there are no facts which need to be decided by a jury.

The Eighth Amendment’s prohibition of cruel and unusual punishment places a duty of prison authorities to protect prisoners from injury caused by other prisoners.

In order to prevail in a civil rights suits for damages resulting from injury caused by another inmate a two part test must be proved. First, objectively the inmate must prove that “the deprivation of rights was sufficiently serious; i.e., whether the inmate “is
incarcerated under conditions posing a substantial risk of serious harm. . . The second requirement is subjective and requires that the inmate prove that the prison official had a sufficiently culpable state of mind.”

The defendants wrongly claim that since the officers did not have specific information that Leach, the alleged rapist, was a danger to Whitson that summary judgment was appropriate. But as the Court points out that a substantial risk of injury can exist without the officers knowing specific information about Leach’s dangerousness. For example other officers may have received complaints or jail regulations may require particular steps be followed when transporting male and female inmates together. None of these issues were raised on summary judgment and therefore triable facts remain to be determined at trial.

The Eighth Circuit Court of Appeals upheld the search of three residences in a Kansas City methamphetamine case in United States v. Cisneros-Gutierrez.

Immigration and Customs Enforcement (ICE) Special Agent Mark King set up surveillance at 323 South Brighton Avenue. Along with other agents he decided to conduct a “knock and talk.” A “knock and talk” is used by narcotics agents when they want to search a residence but they do not have probable cause to get a search warrant. They knock on the front door and when someone answers it they try to talk their way into the house and get consent from the residents to search the house. Of course the residents do not have to answer the door. Nor do they have to talk to the officers or give them permission to enter the house.

But King was either good or lucky. Justino Ruiz-Ramos answered the door. He said he did not live at the residence but Salvador Jesus Velasco-Saldana came to the door. Velasco-Saldana said he resided there and gave the officers permission to enter. He consented to the officers searching the residence. They found methamphetamine and related items. They interviewed Velasco-Saldana and he told them that Gerardo sold him three pounds of methamphetamine and that Gerardo’s brother delivered it. He drew the officers a map explaining how to get to Gerardo’s house.

Several officers including King and Luis Ortiz of the Kansas City Police Department Gang Unit went to 430 Donnelly Avenue and conducted another “knock and talk.” Miguel Angel Garcia-Bobadilla answered the door and again the officers were let in. They asked Garcia-Bobadilla if he was alone. When he answered yes they asked asked if they could perform a protective sweep in order to confirm that no one else was in the house. He gave permission. A protective sweep is done to make sure the officers are safe while in the house. But they also know that any illegal substances they see in “plain view” can be seized. They found a significant amount of methamphetamine in the house.

During the sweep they ran into Alfredo and Dehli Hernando-Pena. Alfredo and Garcia-Bobadilla said they lived in the house. Both gave verbal and written consent to the search. Dehli agreed to cooperate. She told them that Alfredo’s brothers lived at 3907 East 12th Terrace. After the officers search the Donnelly Avenue house they went to the 12th Terrace house. They knocked on the door and Gerardo answered. While talking to Gerardo they noticed Alphonso entering the kitchen with large baggies of powder and they heard what they thought to be Alphonso flushing something down the sink. The officers thinking that evidence was being destroyed entered the residence without a warrant.

After they were indicted the defendants brought motions to suppress the evidence. The court upheld all of the searches. As to the South Brighton Avenue search, it found that Velasco-Saldana gave consent to the entry and search. As a result it was not in violation of the Fourth Amendment.While there was some question about the facts of the Donnelly Avenue search. The police claim that the residents gave their consent and the residents say the police forced their way in, the court found the officers to be credible and the residents not to be. As a result it found that the entry and search was also the result of consent. As to the 12th Terrace search there is an exception to the Fourth Amendment when exigent circumstances exist. The courts have found that the eminent destruction of evidence is an exigent circumstance allowing the authorities to enter a residence without a warrant.

The question that constantly comes up in my mind is why would anyone allow the police to enter their house and search it knowing that there is a significant amount of methamphetamine in the house. If any of the defendants had just said “no” I will not talk with you or “no” you cannot come in, or “no” you cannot search none of this would have happened and they would not have be serving decades in prison. The Fifth and Fourteenth Amendments give people the absolute right not to talk to the police. The Fourth and Fourteenth Amendments Amendments give people the right to refuse entry to any officer who does not have a search warrant into their residence and to deny the officers the right to search the residence.

Even assuming that the police do not always tell the truth it is obvious that the defendants talked themselves into being arrested. Did they think that when talking with experienced officer they could talk themselves out of being arrested–unlikely. And I do not know about this case but by talking they endanger themselves because others get arrested and they may be killed. It makes no sense.

The Eighth Circuit Court of Appeals reversed the conviction of Marc Sean Wisecarver for deprecation of government property after he shot a hole through the engine of a government owned vehicle.

Wisecarver owned a one sixth undivided interest in a a piece of land on the Pine Ridge Indian Reservation near Manderson, South Dakota. He reqested permission to rent out his share. The BIA sent Duke Bourne, a soil conservationist to determine the rental value of the property. Wisecarver saw Bourne drive onto the property. He did not recognize Bourne or the government truck he was driving. He yelled and waved at the truck. Bourne continued driving along the interior of the fence, nearly hitting one of Wisecarver’s horses. When Bourne again ignored Wisecarver’s yelling at him, Wisecarver got his gun.

Bourne drove over to Wisecarver, but he refused to identify himself, giving Wisecarver a phone number he could call. Wisecarver ordered Bourne off the property without the government vehicle because he was afraid Bourne would drive the truck into himself or his horses. Bourne refused and Wisecarver shot a bullet into the car’s engine. Bourne then walked off the property.

Wisecarver was charged with assault on a government officer and deprecation of government property. During deliberations the jury requested further instruction on the deprecation charge. The Judge, after conferring with counsel that:

[y]ou are instructed that the shooting of the pickup truck would constitute ‘depredation’ under the statute 18 U.S.C. § 1361, unless you find that the
defendant did not use justifiable force to protect his person or property.

Shortly after the instruction was given the prosecutor pointed out that the instruction had a double negative in it and misstated the law. But the judge decided not to change the instruction.

The jury found him not guilty of assault but guilty of deprevation.

Wisecarver raised three issues on appeal. First he questioned the sufficiency of the evidence. Second, he asked that the conviction be reversed due to the erroneous instruction. Third he challenge his 36 month sentence.

The Eighth Circuit found that the only issue in contention was Wisecarver’s intent when he shot the gun, that is the issue of self defense and that there was insufficient evidence to show self defense as a matter of law. But it reversed the conviction because the jury instruction was clearly wrong and if the jury followed the instruction as given reversal was necessary. After reversing the conviction it did not consider the sentencing errors.

The Eighth Circuit Court of Appeals upheld the conviction and 180 month sentence for possession of a firearm by a convicted felon in United States v, Kelley

Kelley was convicted after a bench trial in the District Court for the Western District of Missouri of possession of a firearm by a convicted felon. Two burglars were interviewed by the Greene County Sheriff’s Department. They admitted being involved in a string of burglaries and said that stolen guns could be found at the residence of Karlin Kelley. They called the residence and spoke to Kelley’s sister Tanya. Tanya told the burglars and Sergeant Stanley that the weapons were indeed at the house and she invited the officer to come over and get them. When Stanley and a number of other officers arrived Tanya invited them into the house and Kelley gave them written permission to search the house.

Kelley told the officers that the weapons were in a shed behind the house and he showed them the way to the shed.They seized the weapons. He was interviewed on at least two occasions and read his Miranda rights. He told the officers that the weapons were brought to his house and he agreed to keep them until sometime when they could go hunting without the kids there. Since he was a convicted felon and not allowed to possess guns in his house he put the guns in the shed.

On appeal, two issues were raised, the legality of the search and the denial of Kelley’s motion for judgment of acquittal at trial.

As to the motion to suppress, the court found that Kelley gave valid consent to the search. Kelley argued that his consent was a fruit of Tanya’s permission to enter the house and that she was coerced into doing so by the officer’s statements that he did not want another Waco, that he did not want anyone to get hurt, and that he did not want anyone else to raise her children. But the court found that there was sufficient evidence that the consent was given voluntarily. Tanya testified at the suppression hearing that she would have let the officers in without the threats. Therefore the court found that the permission was voluntary.

Furthermore the court found that there was sufficient evidence that Kelley knowing possesed the firearm. Possession can be either constructive or actual. “[C]onstructive possession requires knowledge of an object, the ability to control it, and the intent to do so.” The court found that there was sufficient evidence of constructive possession. Kelly admitted that he knew the guns were in the shed. In fact he moved them from the house to the shed. Furthermore he planned to go hunting with them.

The lesson for Karlin Kelley, and everyone else, particularly if you are suspected of a crime is not to talk to the police and not to give consent to any search. Anything you say MAY and WILL be used against you.

But, 180 months seem like a long time to spend in prison for holding on to the guns. The court said it reviewed the records and found the sentence to be legal.

Joshua Lee Howe was indicted and tried on charges of conspiracy to commit a robbery and kidnapping resulting in felony murder, in violation of 18 U.S.C. § 371; felony murder, in violation of 18 U.S.C. §§ 1111(a) & 2; kidnapping, in violation of 18 U.S.C. §§ 1201(a) & 2; being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1); and using or carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A) and (j)(1) in the Eastern District of Arkansas in relation to the robbery, kidnapping and murder of Jeremy Deshon Gaither.

Howe was acquitted of of felony murder and of using or carrying a firearm during and in relation to a crime of violence He was convicted of being a felon in possession of a firearm. The jury hung on on the conspiracy and kidnapping counts.

Over the objection of Howe the government’s motion to dismiss the indictment without prejudice to refiling charges was granted. Then he was reindicted on various charges including the conspiracy and kidnapping counts. He moved to dismiss the conspiracy and kidnapping charges on double jeopardy and collateral estoppel ground. His motion was denied and he appealed.

The Fifth Amendment provides that no one shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

Accordingly, once jeopardy has attached and terminated as to a particular offense, the government may not bring a new prosecution or punish the defendant again for the same offense.

But a defendant can be retried on charges where he/she has been placed in jeopardy but jeopardy has not been terminated. This is the case where the jury is hung. But it is not the case where the jury finds a defendant not guilty and then the government charges him/her with a lesser included offense. A lesser included offense is in which all of the elements of the offense are found in the greater offense, For example kidnapping is a lesser included offense of kidnapping resulting in felony murder. For both you must prove kidnapping but for the greater offense you must also proved that it resulted in felony murder.

The Eighth Circuit found that the charging of the lesser included kidnapping charge was not a successive prosecution to the kidnapping resulting in felony murder charge since jeopardy never terminated on the kidnapping resulting in felony murder charge. In the original trial the government charged both the greater offense and the lesser included offense. The jury in that case found him not guilty of the greater offense and hung on the lesser offense. Therefore jeopardy never terminated on the lesser offense and the government can recharge in the new indictment.

As to the conspiracy to kidnap resulting in felony murder in the original trial and the conspiracy to kidnap lesser included offense in the second trial, since the jury hung in the first trial, jeopardy did not terminate and the Fifth Amendment is not violated by pursuing the lesser included offense.

Collateral estoppel prevents the retrial of a charge where a jury in a prior trial necessarily found against the government on an element that the government must prove in the second trial. Since the original jury could have acquitted Howe on the felony murder charges by finding that he was not guilty of the robbery and by hanging on the kidnapping the jury did not necesarily find against the government on the kidnapping charge and the government is not collaterlally estopped from bringing the kidnapping charge in the second trial.

Myron Sawyer was convicted for a Little Rock bank robbery. He appealed his conviction on various grounds including denial of his motion to suppress evidence found in his car and denial of his Miranda motion.

A masked robber wearing a green jumpsuit entered the bank and waved a gun demanding that everyone lie down. Then he produced a bag and ordered the teller to fill it up. He jumped up on the counter to make sure the bag was full. While filling the bag the teller put an electronic tracking device in the bag. As he left a man saw him running across the street and followed him in his car. The man saw two men driving a gold Saturn and followed the vehicle. He saw a third man sit up in the back seat. Eventually the onlooker returned to the site of the crime and provided the information to the police. The police following the electronic tracking device found Sawyer shortly after he parked at a convenience store. A green jump suit and a gun were found in plain view in the vehicle.

Sawyer was arrested and taken to the police station. He was read his Miranda rights and he asserted the right to remain silent. He was left in the interviewing room. An officer went to the bank and found a shoe print on the counter. The officer returned to the station and asked Sawyer to show him his shoe. Sawyer complied with the request. The shoe matched the imprint. The officer made some comments about the evidence that had been found. Sawyer began to ask questions. The officer read Sawyer his Miranda rights. This time Sawyer waived his Miranda rights and gave a full confession.

Initially, to detain Sawyer at the convenience store the police must have had a reasonable articulable suspicion that a crime was committed and that Sawyer was involved in the crime. Sawyer argued that the initial detention was illegal and that the evidence found in the Saturn was a fruit of the illegal detention and should be suppressed. The Eighth Circuit found that the police needed a minimal level of objective justification for the search. The court found that this was met by the witness seeing the car leaving the site of the crime, the reckless driving of the vehicle and the electronic tracking device leading to the area where the car was found.

The court found that the police rigorously complied with the initial assertion of Sawyer’s Miranda rights and that a sufficient period of time lapsed between the two times the Miranda rights were given to prevent harassment and therefore the waiver of the second reading of the Miranda rights was valid allowing for the admission of the confession. Furthermore prior to the reading of the Miranda rights the second time Sawyer initiated the conversation.

Of course, I have a bridge to sell to any anyone who believes that the police officer who told Sawyer about the shoe imprint and the other evidence did not hope that Sawyer would start talking about the incident and confess. This happens all of the time. The most famous incident is known as the Christian Burial Speech. In Brewer v. Williams, the defendant was arrested in Davenport, Iowa for the murder of a ten year old girl in Des Moines. His lawyer told him and the officers not to discuss the case on the trip to Des Mones.While being driven to Des Moines by offices one of the officers began talking about how the body had not been found, that it was about to snow and if the body was not found the girl would not get a Christian burial. He then directed the officers to the body. In that case the Supreme Court set aside the conviction. But the basis was the Sixth Amendment right to counsel since the officer by intentionally eliciting Williams’ statement violated their promise to his lawyer not to ask him about the incident.

While the officer did not admit to be eliciting Sawyer’s, confession there is no doubt in my mind that is why the officer discussed the evidence in front of him. But the court found the confession to be admissible.

The Eighth Circuit Court of Appeals upheld the conviction of Edward Lee Smith due to trial counsel failure to make a Franks motion.

A confidential informant told a Hennepin County (Minneapolis) detective that Smith was a leader of the Vice Lords gang and that he was selling drugs and guns from his residence. Detective Joe Poidinger did a computer search and confirmed the gang ties. He arranged but did not participate in a search of Smith’s garbage. In the garbage officers found evidence of drug sales. Based on this information Poidinger obtained a search warrant for Smith’s duplex.

Smith was tried, convicted, and sentenced to a mandatory minimum sentence of ten years in prison based on the quantity of drugs and his prior conviction.

On appeal he argued that probable cause did not exist for the search warrant and that double jeopardy existed since his sentence was aggravated due to a prior conviction.

The appellate court upheld the conviction. It ruled that probable cause existed for the search based upon his prior conviction and the garbage container search.

Smith argued that there was no evidence that the officers searched the correct trash can. He lived in a duplex and the units had adjoining garbage containers.

The appellate court ruled that Smith did not make a Franks motion in the trial court. Therefore the appellate court limited its review of suppression issues to whether or not probable cause existed on the face of the search warrant affidavit. Under Delaware v. Franks evidence seized as a result of “deliberate falsehood or of reckless disregard for the truth” in an affidavit supporting a search warrant must be suppressed. But in order to get a Franks hearing a defendant must show that

[t]here [are] . . . allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.

I have some problem with using the prior conviction. A prior conviction is not really relevant to whether drugs can be found in the defendant’s residence on a particular day. But when we ignore the Franks issues drug related trash in a garbage can is probably sufficient to a showing of probable cause for a search warrant.

The other issue raised by Smith is the mandatory minimum sentence based on his prior conviction. The court held that issue was not timely raised since it was not raised in the trial court. Secondly, the appellate court, relying on precedent, found that the ten year mandatory minimum was “a stiffened penalty for the latest crime, not an increased punishment for the earlier crime.” As a result the court that constitutional provisions against double jeopardy were not violated.

The Eighth Circuit Court of Appeals found that reasonable suspicion existed to pat down Deonta Lemont Stigler after the police were called to a neighborhood known for drug sales regarding a fight between three African American men.

When Officers Michael Dixson and Ryan Doty arrived on the scene they saw two African American men on the sidewalk. One of the men, Stigler ran across the street and then started walking. Dixson asked Stigler about a fight. Stigler, according to the decision, threw a plastic baggie, later determined to have marijuana in it on the ground. Dixson then initiated a Terry stop and a pat search. A Terry stop requires that an officer have a reasonable suspicion that a crime occurred and that the person stopped has a connection to the crime. It can only last long enough for the officer to investigate the crime. A pat search can occur simultaneously to the stop as long as the police officer has a reasonable suspicion that the person stopped has a weapon. During the pat search a gun was found.

Stigler moved to suppress the gun on the basis that the police did not have a reasonable suspicion that he was involved in a crime or that he had a weapon. After the suppression motion was denied Stigler plead guilty, reserving the right to appeal the denial of the suppression motion.

On appeal the court found that based upon the “totality of the circumstances” the Terry stop and the pat search were legal. The court based its decision on the throwing down of the baggie and Stigler’s startled demeanor, along with Stigler’s initial running away and being in an area known for drug transactions. The pat down according to the court was justified by the report of a fight and fear that a weapon may have been involved.

My question is why did Stigler throw the baggie with marijuana on the ground or did he actually throw the baggie down? There was no trial so the “facts” before the trial and appellate courts did not include a trial transcript. Most likely the Eighth Circuit was working with the transcript of a hearing held on the defendant’s motion to suppress the evidence. Its possible that the defendant did not testify at the hearing. In many cases the defense attorney and the defendant decide that the defendant should not testify at a motion to suppress evidence since the defendant’s testimony at the hearing can be used by the district attorney for cross examination at trial. The defendant would not want to answer questions such as what was in the baggie or why were you carrying a gun? If so the only evidence was the police officer’s testimony. But even if the defendant testified at the hearing the court would give additional weight to the officer’s testimony since in a case where the defendant has plead guilty and the District Court denied the motion to suppress the appellate court must decide factual issues in favor of the winning side (the prosecution in this case) in the District Court.

Unless you believe that police officers always tell the truth, you must have some doubt that Stigler threw the marijuana on the ground. Stigler had nothing do gain by throwing it down. After all he still had the concealed weapon. And the police officer could not justify the search without the marijuana being thrown on the ground. This is not to say that defendants never do stupid things but it certainly raises a doubt about the search.